Douglas Anthony Jones v. Lisa Marie Jones Baughman ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-176 CV ____________________

DOUGLAS ANTHONY JONES, Appellant

V.

LISA MARIE JONES BAUGHMAN, Appellee

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On Appeal from the County Court at Law Liberty County, Texas Trial Cause No. 52,667

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O P I N I O N  

This appeal arises from the grant of a motion to modify the parent-child relationship. Jones and Baughman entered into a joint managing conservator agreement on June 28, 1996, concerning their two children. Baughman filed a motion to modify that agreement; the motion was heard and the trial court entered an order granting Baughman's motion. Under that order, Jones is replaced by Baughman as Joint Managing Conservator with primary custody and care of the children. Jones appeals raising three points of error. Point of error one claims the trial court erred in failing to file findings of fact and conclusions of law. The record reflects the "Notice of Past Due Findings of Fact and Conclusions of Law" required by Rule 297 was untimely filed. Failure to comply with Rule 297 waives any complaint on appeal that the trial court failed to file the findings of fact and conclusions of law. See Fleming v. Taylor, 814 S.W.2d 89, 91 (Tex. App.--Corpus Christi 1991, no writ) (citing Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex.1984)). Point of error one is overruled.

In his second point Jones states, "Did the trial Court abuse its discretion in finding a material change of circumstance based on [his] life style of following his job and moving with his employment?" The record does not reflect which change of circumstance the trial court found material. Because the record does reflect more than one change of circumstance since the divorce, the trial court's finding of a material change is not necessarily based upon Jones' movements because of his employment. The point is predicated upon an assertion not established in the record. Therefore, we overrule point of error two.

Point of error three queries "Was the Trial Court's finding of a material change of circumstance and finding of a positive improvement without support in the record an abuse of discretion." Under point of error three, Jones makes only two claims: (1) the only possible basis for granting the motion, "the instability of his moving," is not grounds for modification; and (2) "the mere fact that a parent has remarried and had a home for the children is not alone sufficient to justify modification."

At the time of the divorce, Baughman was a high school dropout with no job and no place to live. The record reflects the following changes since the divorce:

• •both children have started school;
• •Baughman has earned her GED;
• •Baughman has procured employment;
• •Baughman has remarried;
• •Baughman can now provide a home for the children;
• •Jones remarried, divorced, and remarried again;
• •Jones was involved in a live-in relationship that did not result in marriage;
• •Baughman has moved twice since the divorce; and
• •Jones has moved approximately six times since the divorce.

Under the statute in effect when the modification order was entered, ⁽¹⁾ the trial court may modify a joint managing conservatorship if:

(1)(A) the circumstances of the child or one or both of the joint managing conservators have materially and substantially changed since the rendition of the order; or

(B) the order has become unworkable or inappropriate under existing circumstances; and

(2) a modification of the terms and conditions of the order would be a positive improvement for and in the best interest of the child.

We review the trial court's decision to modify for abuse of discretion. See In re P.M.B., 2 S.W.3d 618, 621 (Tex. App.--Houston [14th Dist.] 1999, no pet.). "It is an abuse of discretion for a trial court to rule without supporting evidence." Id. Because there are no findings of fact or conclusions of law, we imply the trial court made all the necessary findings to support its judgment. See Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980).

Clearly, there were grounds for modification other than Baughman's remarriage and Jones' moves. We find the trial court did not abuse its discretion. Point of error three is overruled.

The judgment of the trial court is AFFIRMED.

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DON BURGESS

Justice

Submitted on February 15, 2002

Opinion Delivered February 21, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

1.

Act of April 20, 1995, 74th Leg. R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 174, amended by Act of June 16, 1995, 74th Leg. R.S., ch. 751, § 48, 1995 Tex. Gen. Laws 3888, 3906, repealed by Act of June 16, 2001, 77th Leg. R.S., ch. 1289, § 12, 2001 Tex. Gen. Laws 3108, 3111.